Vol. 14 No. 1 (January 2004)
COMMON-LAW LIBERTY: RETHINKING AMERICAN CONSTITUTIONALISM by James R. Stoner, Jr. Lawrence: University Press of Kansas, 2003. 224 pp. Cloth $29.95. ISBN: 0-7006-1248-3.
Reviewed by Wayne D. Moore, Department of Political Science, Virginia Polytechnic Institute and State University. E-mail: firstname.lastname@example.org .
This book picks up where James R. Stoner, Jr.'s first book left off. In COMMON LAW AND LIBERAL THEORY: COKE, HOBBES, AND THE ORIGINS OF AMERICAN CONSTITUTIONALISM (1992), Stoner examined the development of common-law traditions before the founding of the U.S. Constitution. COMMON-LAW LIBERTY: RETHINKING AMERICAN CONSTITUTIONALISM moves the focus forward in time. The central thesis of this book is that recapturing a proper understanding of the common law is both a key to unlocking fundamental principles of the U.S. Constitution and a guide for judges to decide contemporary constitutional cases.
The book has nine chapters, along with an introduction and conclusion. The Introduction situates Stoner's "paradigm of a constitutionalism that is formed in substantial part by common law" in relation to debates between judicial "conservatives" and "the liberal 'mainstream' of the law professoriat and the judges they influence and admire" (pp.1-2, 7). Stoner leaves little doubt that he sides with the former, while also expressing an aspiration to provide analysis that is "useful to both sides." The book takes aim in particular at "judicial activists" who "forget their specific business, interfering with others' and neglecting their own" (pp.7-8). The primary villains in this account are Oliver Wendell Holmes, Jr., for promoting a corrupt understanding of the common law, and New Deal activists, who substituted judicial will for constitutional principle.
In addition to summarizing Stoner's earlier arguments regarding "the original understanding of the common law," Chapter One stakes out a claim that this understanding "colors every aspect of the Constitution and thus is essential to a complete account of the original understanding of the Constitution itself" (p.16). To support this thesis, he emphasizes four ways that the common law was originally present in the Constitution. First, it is incorporated by the language of the document - not only through its words but also by its style. Second, Stoner claims that Article III and Alexander Hamilton's arguments in the 78th FEDERALIST both presuppose that judges would act in a "common-law mode" - including by being bound by "strict rules and precedents." Third, in Stoner's view the Constitution's securing federal supremacy through courts of law has allowed "the logic of the novel system" to be worked out over time "through a judiciary trained to focus not on abstract questions of sovereignty but on questions of right and power as they arise in a particular case" (p.19). Fourth, Stoner interprets the Bill of Rights primarily as an affirmation of common-law rights. Chapter One also provides a brief account of transformations in understandings of the common law, from the founding period through Holmes' time. Among other things, Stoner decries Holmes' detachment of the common law "from its ancient ground, whether in natural law or in Christian faith." According to Stoner, this detachment made it inevitable that the common law would become "an empty form of flux" (p.29).
Chapters Two through Eight examine judicial decisions involving issues of free speech, religious liberty, abortion, family law, peremptory challenges, taxation, party discipline, commercial regulations, property rights, and police powers. The chapter on free speech, for example, reviews common-law doctrines of free speech and free press, controversy surrounding the Alien and Sedition Acts of 1798, and the Supreme Court's handling of cases involving "fighting words" in the aftermath of the constitutional revolution of 1937. This chapter supports Alexander Hamilton's treatment of issues of libel while criticizing both Holmes and Cass Sunstein for developing relativist accounts of meaning. The latter, according to Stoner, are deficient compared to a common-law approach rooted in commitment to reasoned discourse.
The chapter on religious liberty emphasizes the value of judges' deciding cases one at a time, taking into account particular contexts, rather than through "abstract reasoning" from "first principles." According to Stoner, Justice Antonin Scalia's opinion in EMPLOYMENT DIVISION v. SMITH (1990) is exemplary in this respect across three dimensions. First, Scalia paid homage to the classic process of reasoning from precedents rather than relying on a formula to balance interests. Second, the justice was attentive to the particular facts of the case. Third, he also looked to the circumstances surrounding the establishment of the Constitution and of the first amendment as an aid to interpreting its meaning. Stoner found similar elements in a New York case from 1813 involving a priest who refused to testify about what he had learned at the confessional. According to Stoner, the court's decision to uphold the priest's privilege also had the additional virtue of respecting the importance of religious liberty both within the common law and within American politics more generally.
Stoner, who is Associate Professor of Political Science at Louisiana State University, relies on the common law to criticize judicial decisions involving abortion, family law, taxation, party patronage, commercial regulations, property rights, and state police powers. In his view, recent decisions upholding rights of abortion severed connections between precedent and tradition. Other cases involving rights of privacy and claims of sexual discrimination have undermined the legal basis of the traditional family in ways that would have been "unimaginable had common-law modes of reasoning retained their vigor and reputation" (p.90). Decisions weakening the peremptory challenge both demonstrate the authority of the common law and the extent to which it has been circumscribed by modern sensibilities. Stoner also celebrates the common law's influence in "providing a counterpoint to both laissez-faire and state-directed models of economic development," as it "has been an anchor of tradition against the engine of economic change" (p.147). Drawing on these arguments, he criticizes the New Deal Court for replacing the practical reason of the common-law judge with scientific rationalism while upsetting the balance between private right and public good.
I found Chapter Nine, on "Common Law, Constitution, and World Order," especially interesting. The chapter takes the Court's decisions in MISSOURI v. HOLLAND (1920) and UNITED STATES v. CURTISS-WRIGHT EXPORT CORPORATION (1936) as points of departure. According to Stoner, these decisions are problematic for two main reasons. First, they rest on a theory of sovereignty "profoundly at odds with the original understanding, which is at least as indebted to the traditions of common law as to those of modern political theory" (p.151). Second, a common-law approach to foreign affairs has advantages over "discredit[ed] modern theories of sovereignty" in the construction of a new world order (p.151). In support of both propositions, the chapter relies heavily on James Kent's COMMENTARIES ON AMERICAN LAW (1840) as exemplifying "the classical account" of constitutionalism in relation to external affairs. From such a perspective, according to Stoner, the common law "binds the positive fragments of American law in a single whole . . . not by free invention but by bringing reason and experience to bear in the application of law to each particular case" (p.154). This statement sums up well Stoner's vision of constitutional adjudication consistently with a common-law frame of mind.
Stoner explains how, for Kent, the common law not only provided a distinctive perspective toward domestic law. It also integrated domestic and international law. Neither descended from a supreme legislative power, and thus both depended for their authority on something besides sovereign will. This is especially important at the international level, where the absence of a sovereign legislator is not an obstacle (according to Kent or Stoner) to the existence of binding law. The business of courts, on this alternative model, is not only to apply domestic law, but to decide cases based on all relevant norms - including international law. By extension, in Stoner's view, international law does not depend on the existence of international tribunals. Third, Kent applies the common law in a manner that "lacks both the self-righteous indignation of the moral idealist and the aimless pragmatism of the modern realist." Taking into account "the consensus of the relevant community," Kent relied on "the power of reason, working steadily case by case, to aim at the human good" (p.159).
More specifically, Stoner emphasizes the advantages of a common-law approach to international affairs over "modern liberal internationalism." The latter, in his view, is not sufficiently attentive to the capacities of different societies to govern themselves. Thus despite his criticism of positivist theories of sovereignty, Stoner endorses principles of self-governance as long as they are tempered by solid understanding of limits associated with the rule of law. Both domestically and within the internal arena, he urges Americans to be true to "the traditional understanding of liberty . . . as dependent on and contributory to moral order, not as its mortal enemy" (p.163). Stoner looks to this model as a basis for a new world order that avoids the perils of anarchy on the one hand or despotism on the other.
The book concludes by commenting briefly on issues of normative continuity and change. Perhaps parting company with constitutional conservatives many of whose positions on a number of issues Stoner endorses throughout the book, he indicates that a common-law perspective treats American constitutionalism "as a living thing." But he quickly denies that in his view "the living Constitution" is as malleable as "judge-made law in a pragmatic mode." On the contrary, he emphasizes that constitutional meaning has or should have "elemental constancy" - with this stability in meaning itself a baseline guiding organic change. The book closes criticizing Darwinian theories of evolution, suggesting instead a religious perspective according to which "the things that are unwritten and maybe even incapable of being written might yet prove to be, if not always the most urgent, in the long run, the most important things" (pp.165-67).
Throughout, COMMON-LAW LIBERTY is both thoughtful and thought-provoking. The book is well organized, the prose accessible. In important ways, the medium is the message, as the analysis itself exhibits and exemplifies forms of common-law reasoning. Stoner avoids sweeping generalizations, concedes the limits of positive law, develops his position case-by-case, draws on his understanding of relevant moral and political traditions, and is attentive to issues of practical politics. The analysis is nuanced, even as it leaves little doubt as to its deep commitments and aims.
I hope it is evident from this brief review that COMMON-LAW LIBERTY does not purport to provide an exhaustive account of the common law or of its transplantation, transformation, partial demise, and continuing viability within the United States. The book largely brackets important questions about the authority and significance of the common law at the state level, where its direct influence apparently has been greatest. Chapter One refers to the development and demise of federal common law "in its technical sense" from SWIFT v. TYSON (1842) through ERIE R. CO. v. TOMPKINS (1938). But again Stoner treats this topic as incidental to the book's primary focus on relationships between the common law and the U.S. Constitution. Nor do all common-law liberties, or all constitutionally authoritative liberties, receive sustained attention. The book's coverage of topics is selective, echoing the methodology of case-by-case adjudication.
The book succeeds in demonstrating that various features of common-law reasoning as exemplified by selected historical materials that provide support for some judicial outcomes and provide critical perspectives toward others. More specifically, Stoner draws on common-law modes of analysis to reinforce an interpretive agenda that is unabashedly conservative. Persons with complementary moral, religious, and political commitments - as with those seeking to understand the influence of such positions - will find much of the analysis useful as well as instructive.
An important issue warranting further consideration is whether the analysis is more generally useful or otherwise significant. I will close by raising and addressing briefly three overlapping subsidiary queries pertinent to such an inquiry. First are questions about the severability of Stoner's analysis from originalist interpretive premises. Second are questions about whether features of the common-law method advanced by this book are separately or jointly biased toward conservative interpretive positions. Third are questions about what criteria are appropriate for evaluating Stoner's model of the common law along with the constitutional interpretive positions he supports in reliance on that model.
Several passages in COMMON-LAW LIBERTY support originalism as a feature of common-law reasoning, and much of the analysis appears to take for granted the appropriateness of some version of originalism. At the same time, Stoner does not develop or defend his interpretive agenda primarily through analysis of sources from the founding period (or later eras in the case of amendments), and where he does invoke such sources he typically assesses them based on criteria other than their originalist pedigrees. His earlier book, COMMON LAW AND LIBERAL THEORY, contains a fuller treatment of sources from the founding period along with more extensive analysis of the potential benefits from mining historical sources. Especially if read through lenses provided by the earlier book, COMMON-LAW LIBERTY offers interpretive and analytic perspectives that strike me as potentially if not necessarily severable from originalist conceptions of authoritative constitutional meaning even as they aim to recapture and endorse founding interpretive perspectives.
Thus we may turn to the second query. At one point Stoner describes the process of reasoning embedded in the common law as "moving to general principles from particular cases, following precedent but holding to the maxim that precedents against reason are not good law" (p.60). He also repeatedly emphasizes the common law's historical commitment to traditional institutions such as private property, marriage, the family, and religion. Thus he criticizes judicial decisions that have gone against reason, tradition, or both (as he conceives them). While it is clear that some understandings of reason and tradition support conservative interpretive positions, it is less clear whether these criteria - or defensible versions of them - may similarly support liberal readings of the U.S. Constitution.
One way to explore this issue more fully is by looking closely at Stoner's treatment of cases involving rights of privacy and sexual equality. Following convention, he traces the majority rulings in EISENSTADT v. BAIRD (1972) and ROE v. WADE (1973) back to Justice John Marshall Harlan's dissent in POE v. ULLMAN (1961) and the Court's opinion in GRISWOLD v. CONNECTICUT (1965). Stoner describes Justice Harlan as the common law's "most adept admirer at the time," and he commends his and Justice William Douglas' opinions in the earlier cases for rooting the right to use contraception in the traditional institution of marriage. But Stoner also criticizes Justice Harlan's opinion in POE for treating legal tradition as "a 'rational process' always in flux" (p.87). I read Stoner's use of quotation marks in this passage as implying that the justice's conception of "rationality" or "reason" in this case was not that of the common law, properly understood. Relatedly, Stoner criticizes Justice Harlan for accepting "the then-modern notion of marriage as a den of sexual intimacy" and for "discard[ing] that side of the tradition in which marriage involves public recognition of a sexual liaison for the sake of replenishing human life" (p.87). Even more reprehensible, according to Stoner, was the Court's detachment of the right of privacy from marriage altogether through its holding in EISENSTADT that unmarried individuals had a right to use contraception. Once the Court made that move, in Stoner's view, the ruling in ROE was "merely an afterthought" (p.88). He similarly criticizes the plurality opinion in FRONTIERO v. RICHARDSON (1973) along with the majority opinion in UNITED STATES v. VIRGINIA (1996) for emphasizing individual rights and diminishing the value of men's and women's traditional roles "in the family and thus in society" (pp.89-90). It is apparent that Stoner would similarly criticize the Court's decision in LAWRENCE v. TEXAS (2003), decided after the book's publication.
Significantly, however, each of these decisions finds some support from common-law modes of reasoning that Stoner endorses in COMMON-LAW LIBERTY. For example, it is noteworthy that Justice Douglas' opinion in GRISWOLD, as with Justice Harlan's dissent in POE, does not rely exclusively on the constitutional status of the family. Both also interpret the fourteenth amendment's due process clause with reference to enumerated limitations in the Bill of Rights along with the Court's prior precedents interpreting them. Both opinions emphasize individual rights, not only communal welfare; they rely heavily on reasoning by analogy; and they orient that reasoning primarily toward defending positions on how to resolve the particular lawsuit. But these opinions draw on those forms of reasoning to support a liberal (individual-rights oriented) model of the Constitution in tension with Stoner's conservative (traditionalist) reading of it. The majority opinion in GRISWOLD was also significant as an interpretive precedent capable of further extension through continued common-law reasoning.
While Stoner rejects the progression from GRISWOLD to EISENSTADT and ROE as an indication that the common law had become "an empty form of flux" (p.29), one might similarly defend this progression (as with GRISWOLD itself) based on versions or extensions of common-law reasoning endorsed by Stoner. The same may be said of decisions invalidating differential treatment based on sex in reliance on the equal protection clause of the fourteenth amendment, as with the Court's recent decision in LAWRENCE. Does not American constitutionalism rest on liberal and egalitarian traditions, not only those emphasized by Stoner? Is it not possible to draw on common-law modes of reasoning to support claims of individual rights, not only to advance communal aims? Does not the text of the U.S. Constitution, as with solidly reasoned interpretations of its provisions, support positions at odds with Stoner's conservative interpretive agenda as well as those that advance it? Does reason itself, or the nature of the constitutional enterprise, require understanding the common law as committed to traditional understandings of institutions such as the family and rights of private property to the exclusion of contemporary understandings of each? Do liberal readings of the Constitution, any more than conservative ones, depend on forms of reasoning that reduce constitutional adjudication to "an empty form of flux"? I'm not so sure.
These considerations lead to issues pertinent to the third query as posed above. If American constitutional traditions are more pluralistic than Stoner concedes, and if common-law modes of reasoning are more equivocal in their implications than his book suggests, then it may be that judges and others must (or more modestly may) look to interpretive and evaluative criteria beyond reason, tradition, or the common law itself either to choose among competing understandings of these criteria or to resolve lawsuits based on other criteria. At this level, Stoner apparently would have judges rely on the precepts of natural law and/or Christian faith. He assumes, moreover, that "agreement is more readily achieved on moral questions than on theoretical ones" (pp.7, 29). He criticizes in particular abstract moral theory such as that rooted in liberalism.
But Stoner cannot avoid theory, and even the common-law methods of analysis that he endorses involve forms of abstraction. More importantly, as Stoner doubtless recognizes, authoritative constitutional practices reveal deep and far-reaching moral disagreement-not only consensus. Many individuals are unwilling to treat as privileged the forms of reasoning endorsed by Stoner, the traditions they support, or the means of maintaining them that he commends. Rather than settling the U.S. Constitution's meaning, this book leaves unresolved questions about that Constitution's ability to accommodate competing understandings of reason, tradition, and political morality otherwise conceived.
In sum, COMMON-LAW LIBERTY is a welcome addition to scholarship on law and courts. It demonstrates how historically oriented understandings of common-law methods of reasoning may reinforce conservative interpretive positions. Whether or not those methods may also support alternative understandings of the Constitution, its ongoing vitality depends on keeping open access to a full range of constitutional vistas.
Stoner, James R., Jr. 1992. COMMON LAW AND LIBERAL THEORY: COKE, HOBBES, AND THE ORIGINS OF AMERICAN CONSTITUTIONALISM. Lawrence: University Press of Kansas.
EISENSTADT v. BAIRD, 405 U.S. 438 (1972).
EMPLOYMENT DIVISION v. SMITH, 494 U.S. 872 (1990).
ERIE R. CO. v. TOMPKINS, 304 U.S. 64 (1938).
FRONTIERO v. RICHARDSON, 411 U.S. 677 (1973).
GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965).
LAWRENCE v. TEXAS, 539 U.S. __ (2003).
MISSOURI v. HOLLAND, 252 U.S. 416 (1920).
POE v. ULLMAN, 367 U.S.497 (1961).
ROE v. WADE, 410 U.S. 113 (1973).
SWIFT v. TYSON, 41 U.S. 1 (1842).
UNITED STATES v. CURTISS-WRIGHT EXPORT CORPORATION, 299 U.S. 304 (1936).
UNITED STATES v. VIRGINIA, 518 U.S. 515 (1996).
Copyright c 2004 by the author, Wayne D. Moore.
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